Motion to quash subpoena. This may be on your mind if you’re a target of a movie downloading lawsuit. Your first notification will be from your internet company (like Comcast). The notice will tell you the movie company subpoenaed it to release your name and address.
The subpoena may be from Strike 3 Holdings LLC, Malibu Media LLC, ME2 Productions or any of a number of other BitTorrent copyright movie plaintiffs. Your notice from your ISP will likely tell you that the subpoena is subject to your filing a motion to quash (or vacate) the subpoena in the federal court that the copyright infringement lawsuit was filed in.
This Article Provides Information on the Relative Risks and Benefits of Filing a Motion to Quash Subpoena.
Deciding whether to file a motion to quash a subpoena is a gamble that may either kill off the case against you completely (a great win, and cheaper than paying to settle), or may be a waste of time and money – and the outcome cannot be predicted.
Caveat: This article is not legal advice, seek competent legal advice from an experienced lawyer such as the lawyers at Antonelli Law for your particular circumstances.
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How Might Filing a Motion to Quash Help Me?
If a motion to quash persuades the judge that the movie company’s lawsuit Complaint is so deficient that it cannot be repaired, because of either jurisdictional or technical reasons, then filing a motion to quash is probably worthwhile.
In many cases in the past we at Antonelli Law usually did not recommend filing a motion to quash the subpoena because of the risks that are described below. But in 2017, we are again encouraged that filing motions to quash the subpoena in BitTorrent movie download cases may just be worthwhile. This is especially true for Malibu Media LLC and Strike 3 Holdings cases due to the heightened dollars at risk.
Why? Because a new law journal article by Loyola Law Professor Matthew Sag has been published explaining why in his opinion many (if not all) of BitTorrent copyright infringement cases don’t really state enough evidence, at least in the lawsuit’s Complaint. Law Professor Matthew Sag’s article is called Defense Against the Dark Arts of Copyright Trolling.
Basically, our argument goes like this:
“The lawsuit’s complaint alleging copyright infringement really only alleges that a few “bits” of data were directly observed transmitted with the IP address in question. That’s not enough to make out a copyright infringement claim. Therefore, if the court should throw out the lawsuit’s complaint based on this deficiency (through something called a 12(b)(6) motion) then it should quash the subpoena.
These arguments are not new.
However, we believe that when a law professor says the same things rather than “just a lawyer” arguing on behalf of a client, a judge (and his or her judicial law clerks) just might take the argument more seriously.
For example, we recently filed a motion to quash in a Malibu Media LLC case, and days before the court hearing on the motion Malibu Media LLC agreed to dismiss the lawsuit against our client.
Was it due to the argument we made above? Or was it the additional argument we made based on jurisdiction that our client was in Indiana and the lawsuit was filed in the Northern District of Illinois? Or something else? We will probably never know.
If we agree to file a motions to quash the subpoena in your ME2 Productions, LHF Productions, Malibu Media LLC or other movie downloading lawsuit, it will likely be because after detailed discussion with our client it is hoped that not only will the judge grant the motion, but he or she will also and dispose of the case permanently against the client.
If you are interested in pursuing this route please read below to see why filing a motion to quash the subpoena might not end the case permanently against you, and could even work against you. And of course feel free to speak with an Antonelli Law attorney for free to evaluate whether filing a motion to quash the subpoena makes sense for you.
How Would Filing a Motion to Quash the Subpoena Work Against Me?
When you are being targeted by your IP address in a BitTorrent copyright infringement lawsuit, the plaintiff that filed the lawsuit does not know who you are. All they have is an IP address. (An IP address does not identify the guilty party, but that is beyond the scope of this page). In order to find out the identity of the ISP accountholder, the plaintiff must file a special, early request with the court soon after the lawsuit complaint is filed pursuant to Federal Rule of Civil Procedure 26 (d)(1).
Here is the problem: In a multiple defendant case (e.g., Does 1-25), even if you win a motion to quash the subpoena, the plaintiff will probably have the right to file lawsuits individually against each and every one of the defendants, including you.
Filing a motion to quash the the subpoena is often based on one or more of the following factors:
1) The court in which the lawsuit was filed is not in your jurisdiction
2) The plaintiff has joined too many defendants (e.g. Does 1-25) and the court has been deprived of a great deal of filing fees instead of filing individual suits and the case docket will become unmanageable. Technically this is an additional motion to “sever” the defendants from each other.
3) The plaintiff has engaged in some kind of dirty business or technical chicanery, such as unethical practices in prior cases; the complaint fails to state a cause of action and does not include necessary facts; or the BitTorrent “swarm” as alleged in the complaint does not properly connect the numerous defendants together.
Oftentimes, after the court skirmish over the motion to quash is decided by the court, if the defendant “wins” the motion to quash and the court orders the lawsuit “severed” the court will order the ISP subpoenas quashed for the remaining defendants (e.g. Does 1-99).
So, what happens next?
What happens next is the plaintiff immediately files individual lawsuits against the defendants that filed the motions to quash in the first place.
Now, the defendants that “won” the motion to quash the subpoena in the original lawsuit against multiple defendants (eg. against 100 John Doe defendants) are in a much weaker position because the reasons the court granted the original motion to quash are now absent in the second lawsuit against the individual defendant. It is now almost certain that any new, second motion to quash will be rejected by the court and the plaintiff will finally find out your identity and serve you with a summons and complaint.
So, to summarize, the people that filed a motion to quash the subpoena in the original multiple defendant lawsuit have:
1) Paid a lawyer fees for a motion to quash that did not work in removing the legal threat against them
2) Made themselves targets of a new lawsuit which names them individually
3) May have a higher settlement price to deal with the second lawsuit, and may have paid much larger legal fees
4) Have had to deal with the threat of a federal lawsuit for many months
What Does Antonelli Law Advise to Do if I Do Not Want to Settle?
Every case is unique and each individual must discuss their specific facts and tolerance for risk with an attorney. In addition, there may be material changes in the law, plaintiffs’ behavior, or the courts that make the thoughts expressed in this page moot. This website is not intended to give legal advice and does not do so.
However, generally speaking, our thinking has been that if someone has received an ISP letter notifying them a subpoena has been issued requesting their identity and they do not wish to settle and instead wish to take their chances with being named and served with a lawsuit, do not file a motion to quash. If you want to take the risk, save the money you would have spent on a motion to quash and instead use it to settle the case if: a) you are served a summons and complaint, or b) you are actually targeted in an individual lawsuit against you. And, if you are never served with the complaint, you will have spent nothing – not even attorneys fees.
In order for the gamble of not settling to work the plaintiff must not follow through with serving you with a summons (or waiver of service) and complaint. This might happen if the plaintiff has troubles with the court or if after going after a number of defendants (say for example the first 30 does in a case with defendants numbering 1-100) the plaintiff decides it has better things to do. No one can predict ahead of time if the plaintiff will follow through and serve you with a summons (or waiver of service) and complaint.
When Should a Motion to Quash Be Filed?
We do file motions to quash and believe they can work in certain limited circumstances. Answering the simple question “Is it worth it?” for you is a little complicated and best discussed in a free initial consultation with our firm. Here are some broad guidelines to discuss with an attorney:
First, if you live in a jurisdiction different than the one the lawsuit was filed in and the jurisdiction you live in is hostile to copyright trolls and/or there are no current attorneys representing the plaintiff in your jurisdiction, a motion to quash based on lack of jurisdiction is probably a good idea.
Second, motions to quash can do a number of important things. They can inform the court of defects it was not previously aware of in the plaintiff’s complaint or background. As stated above, a motion to quash can inform the court that the plaintiff has engaged in some kind of dirty business or technical chicanery, such as unethical practices in prior cases. Also, you may catch a lucky break if the plaintiff’s case crumbles at this stage.
Antonelli Law will advise you, take the time to explain some of the complicating factors at work, and let YOU make the call according to your values, tolerance for risk and ability to pay. Sound like good lawyerly advice? We believe so.
We like a good fight that makes sense. After all, we’ve been litigators from the very start of our careers and have the “fire in the belly” to take it all the way. Call attorney Jeffrey Antonelli for a free initial consultation at 312-201-8310 or email him at Jeffrey@Antonelli-Law.com.
Has Antonelli Law Been Successful with Motions to Quash?
- 2017 Antonelli Law filed a motion to quash in the Northern District of Illinois against Malibu Media LLC. The case was dismissed without prejudice just days before the hearing on the motion, without our client paying anything to Malibu Media LLC.
- 2016: Antonelli Law and local counsel win order in Malibu Media LLC case in Northern District of California case staying the subpoena, resulting in settlement favorable to our client. Click here for the Order.
- Antonelli Law and local counsel win order quashing Malibu Media subpoena and granting all does but Doe 1 to be severed and dismissed as a result of our reply in support of motion to quash and motion to quash in New Jersey
Disclaimer: Past successes are not a guarantee of future results, and your individual case must be analyzed in terms of the law and other factors. Call attorney Jeffrey Antonelli for a free initial consultation at 312-201-8310 or email him at Jeffrey@Antonelli-Law.com.
Can I Just Do Nothing and Wait?
Yes. You can also do nothing and wait. The plaintiffs will likely send one or two threatening settlement demand letters. Whether they follow through and actually name and serve you is an uncertain risk. This phase of the lawsuit can be described as game of “chicken”: you either do not spend a dime because the case goes away (or they don’t get to sue you for some reason), or if they do sue you it may cost you more for defending it and to settle the case or possibly having an expensive judgment entered against you. You should reflect on how you feel about these possible outcomes. Nobody is in your shoes but you.
No one can predict ahead of time if the plaintiff will follow through and serve you with a summons (or waiver of service) and complaint.
ISP Subpoena & Copyright Defense, BitTorrent lawsuits, Retain Antonelli Law
Call attorney Jeffrey Antonelli for a free initial consultation at 312-201-8310 or email him at Jeffrey@Antonelli-Law.com. This is a swiftly changing area of law and we continually follow the latest developments. Our last complex trial involved computer firewalls, sophisticated commercial networks, and a Microsoft certified expert.
Many people are receiving notices from their ISP (Internet Service Provider) informing them a subpoena was received demanding their name and address. If you do nothing, the ISP will release your name and address to the plaintiff’s attorneys on the date indicated in the notice. People are also receiving Summons in the mail requesting waiver of service of process. Call us for a free initial consultation if you receive either of these.
We offer a reasonable Flat Fee for helping you settle and remain anonymous in many cases; and reasonable fees for motions to quash and for defending you if you are named as a defendant in a copyright infringement lawsuit. We gladly accept referrals from other attorneys and accept clients for Illinois, Wisconsin, Michigan, Ohio, Maryland, Washington DC, New Jersey, New York, Florida, Colorado, and other states’ federal courts on pro hac vice application around the country.
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